Bangalore District Court
R. Stephen Raj vs Mazar Khan on 12 January, 2024
1
KABC030129122019 Digitally signed
by R
R MAHESHA
MAHESHA Date:
2024.01.12
16:42:07 +0530
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU.
Dated this the 12 th day of January 2024
Present : Sri.R.Mahesha.
B.A.L., LL.B.,
IX Addl.C.M.M., Bengaluru.
JUDGMENT
1.C.C.No. 4290/2019
2.Date of offence 1.1.2019
3.Complainant State by Bandepalya Police
Station.
2
4.Accused Majar Khan S/o.Najeer Khan
R/o.Gangamma Layout,
Mangammanapalya,
Bengaluru.
5. Offences U/Sec.51(B), 63 of Copyright Act.
complained of
6.Plea Accused pleaded not guilty.
7.Final Order Accused is acquitted.
8.Date of Order 12-01-2024.
The Police Sub-Inspector of Bandepalya Police Station, Bengaluru has filed this charge sheet against the accused for the offence punishable U/Sec.51(B), 63 of Copyright Act.
2. The brief facts of the prosecution case is that, on 11/1/2019 within the limits of Bandepalya Police Station, situated at N K Diamond Clutch Center, No.13, Hosur Road, Opposite M P Crane, Bommanahalli, Bengaluru - 68 3 complainant - Sri.R Stephan Raj Investigation Officer of EIPR India Private Limited the accused persons were manufacturing of spurious/counterfeit products of VALEO spare parts i.e. clutch plates and clutch rings without obtaining any permission from complainant, the authorized officer of the said company and mis-utilized the same without obtaining any permission from the complainant and were selling the same to the public and cheated the company and also public. Hence, CW.1 lodged first information. The Station House Officer registered a case in Cr No.5/2019 for the offences punishable u/Sec.51(B), 63 of Copyright Act, and submitted First Information Report to this Court. After investigation, Police Inspector of Bandepalya Police Station filed charge sheet for the said offences punishable u/Sec.51(B), 63 of Copyright Act and 4 Sec.420 of IPC against the accused. Hence, they have committed the alleged offences.
3. Accused is on bail. On receipt of charge sheet, this court took the cognizance of the alleged offences and furnished copy of the prosecution papers to the accused. After hearing on charge, this Court has framed charge for the offences punishable U/Sec.51(B), 63 of Copyright Act and Sec.420 of IPC for which accused pleaded not guilty and claimed to be tried.
4. The prosecution, in order to prove its case, has examined 7 witnesses as PW.1 to 7 and got marked documents at Ex.P.1 to 6 and closed the side of the prosecution evidence, and Statements u/Sec.313 of Cr.P.C. recorded, read over and explained in the vernacular language of the accused, wherein accused has 5 denied the incriminating circumstances appeared against him as false and did not choose to lead defence evidence. As such, the matter was posted for arguments.
5. I have heard the arguments on both sides.
6. The points that arise for my consideration are as under:
(1) Whether the prosecution proves beyond reasonable doubt that on 11/1/2019 within the limits of Bandepalya Police Station, situated at N K Diamond Clutch Center, No.13, Hosur Road, Opposite M P Crane, Bommanahalli, Bengaluru - 68 complainant - Sri.R Stephan Raj Investigation Officer of EIPR India Private Limited the accused persons were manufacturing of spurious/counterfeit products of VALEO spare parts i.e. clutch plates and clutch rings without obtaining any permission from complainant, the authorized officer of the said company and mis-utilized the same without obtaining any permission from the complainant and were selling the same to the public and cheated the company and also public and thereby committed an offences punishable u/Sec.51(B), 63 of Copyright Act and Sec.420 of IPC ?
2 ) What order ?
6
7. My findings to the above points are as under:
Point No.1 : In the Negative, Point No.2 : As per final order, for the following:
REASONS
8. Point No.1 :- It is well settled that in a criminal case the entire burden of proof rests upon the prosecution and the accused need to prove nothing. Suffice for the accused to create doubt about the case of the prosecution and the reliability of the witnesses for the prosecution.
9. The main allegation of the prosecution is that on 11/1/2019 within the limits of Bandepalya Police Station, situated at N K Diamond Clutch Center, No.13, Hosur Road, Opposite M P Crane, Bommanahalli, Bengaluru - 68 complainant - Sri.R Stephan Raj Investigation Officer of EIPR India Private Limited the 7 accused persons were manufacturing of spurious/counterfeit products of VALEO spare parts i.e. clutch plates and clutch rings without obtaining any permission from complainant, the authorized officer of the said company and mis-utilized the same without obtaining any permission from the complainant and were selling the same to the public and cheated the company and also public. As already stated supra, the prosecution has examined 7 witnesses as PW.1 to 7 and documents got marked as Ex.P.1 to 6 .
10. The prosecution has been examined CW.1 as PW.1, he being Investigation Officer in EIPR Company and informant of this case. He specifically testified before this Court that on 11/1/2019 the accused was selling duplicate spare parts of VALEO company at N K Diamond 8 clutch center No.13, Hosur road, Bengaluru, without obtaining permission of his company and thereby cheated the company and also public. He further deposed that he filed complaint against the accused and police came to the spot and drawn panchanama and seized the spare parts from the possession of the accused.
11. The prosecution has been examined CW.2 as PW.2 and CW.5 as PW.6 they panchas. They specifically testified before this Court that 11/1/2019 police drawn panchanama and they singed on it.
12. The prosecution has been examined CW.8 as PW.3, CW.7 as PW.4, CW.10 as PW.4 and CW.10 as PW.5. They being police officers. They specifically testified before this Court that they apprehended the accused along with spare parts and produced before Investigating Officer. 9
13. The prosecution has been examined CW.11 as PW.7, he being Investigation Officer of this case. He specifically testified before this Court that on 11/01/2019 when he was on Station House Officer duty at that time complainant came to Police Station and filed complaint against the accused and he registered the case and recorded the statements of witnesses and drawn panchanama and seized the spare parts from the possession of accused and after completion of investigation filed charge sheet against the accused.
13. On perusal of oral and documentary evidence it appears that during marketing survey of informant he got credible information the N K Diamond Clutch Center, No.13, Hosur Road, Opposite M P Crane, Bommanahalli, Bengaluru - 68 are selling the counterfeit products of 10 VALEO spare parts. Therefore, he lodged FIS before SHO of Bandepalya police station. Accordingly, Ex.P.5 registered against the accused. Further police officers and panchas are proceeded and found counterfeit products of Veleo company clutch plates and seized by drawing Ex.P.2. After collection of relevant materials the Investigation Officer has charge sheeted against the accused for the offences punishable u/Sec.51(B), 63 of copyright Act and Sec. 420 of IPC. In order to bring home the guilt of the accused the prosecution has cited CW. 1 to CW.11, out of which the prosecution has been able to examined PW.1 to 7 and got marked Ex.P.1 to 6. It is relevant to note that CW.1 has examined as PW.1 on 31/1/2023 and he has been subjected partly cross- examination by accused. Due to lunch time emerged therefore, the further cross-examination of pw.1 is 11 deferred. After that this Court provided sufficient time and took coercive steps against PW.1 but he did not turned up for further cross-examination. Therefore, this Court took prayer of learned Sr.APP is rejected, evidence of PW.1 is discarded as not tender for further cross- examination. Further it is relevant to note that CW.6, and 9 and 8 and 9 are one and the same. Hence, CW.6 and 9 are given up by the prosecution on 31/1/2023. Further it is relevant to note that despite took coercive steps against CW.3 and 4 the prosecution has been failed to secured their presence before this Court. Therefore, this Court took prayer of learned Sr.APP is rejected and CW.3 and 4 are dropped out vide order dated 14/7/2023. Further it is relevant to note that CW.2 is examined as PW.2 on 31/1/2023 on that day the counsel for accused sought for further time for conduct cross-examination. 12 But this Court took prayer of learned advocate is rejected and cross of pw.2 is taken as nil on the same day. Further it is relevant to note that the counsel for accused has filed application u/Sec.311 of Cr.P.C. to recall CW.2 and 5 (PW.2 and 6) this application was opposed by the prosecution, after contest the said application came to be allowed on 26/9/2023 by imposing cost of Rs.1,500/-. The conditions imposed by this Court has been complied by the accused and this Court again issued process of summons, witness warrants and proclamation against pw.2 and 6 but it could not possible to secured the presence of pw.2 for the purpose of cross-examination. Therefore, this Court took prayer of learned Sr.APP is rejected and the evidence of pw.2 discard as not tender for cross-examination vide order dated 7/12/2023. The counsel for accused conducted cross-examination of 13 CW.5/PW.6 on 7/12/2023. So on careful perusal of oral and documentary placed by the prosecution it appears that the evidence of pw.1 and 2 is discard as not tender for cross-examination. So their evidence is not all incriminating against the accused. PW.3 to 5 are police official witnesses in their cross-examinations they clearly admitted that they have not aware the seized articles are genuine products of Velo Company or not ? Further it is relevant to note that pw.6 is an eye witness to the alleged incident. He specifically deposed in his chief-examination he knows the accused persons and properties produced before this Court, since 3 years back when he was walking on the road in front of accused's shop some small kids are stood there and he found 20 clutch plates in front of accused shop and police officers have took his signature on one document. But he does not know other 14 facts of this case and he did not gave any statement before police officers. In the cross-examination of learned Sr.APP he fully supported the case of prosecution by admitting the suggestion made by the learned Sr.APP. Further he has been subjected by the cross-examination by the accused. He clearly admitted in his cross- examination that he does not know the owner of the said shop and he does not know from which shop the police officers took clutch plates and further he admitted that it could not possible to say MO.1 was seized by the police officers on that day. Further he admitted that accused is not stood near MO.1 on that day. Further he admitted in cross-examination that he is not personally counted clutch plates on that day. Further he admitted that the police officers have not enquired him regarding this incident at police station. Further he admitted that he 15 does not know case facts of this case. Further he admitted that he knows about this case after said by police officers. The police officers have not took his signature on MO.1. So this witness completely deposed against his chief-examination. Further it is relevant to note that in the cross-examination of pw.7 he being police officer and Investigation Officer of this case he clearly admitted that in FIS it is not mentioned in which vehicle clutch plates. He called panchas through his staff to police station. Further he admitted that he does not know how CW.2 and 3 are called on that day. Further he admitted that he is not mentioned designs of MO.1 in panchanama. Further he admitted that at the time of seizure he made department seal at the spot. So from over all evidence of pw.3 to 7 it appears that pw.6 is a private independent witness to the alleged incident. But 16 he totally turned hostile in the cross-examination of the accused and remaining police witnesses are naturally supported the case because this case has been registered by the SHO of Bandepalya police station and their evidence is not helpful unless other independent witnesses evidence corroborates. Further CW. 2 and 3 i.e. panch witnesses to seizure panchanama are not yet stepped into witness box and pw.1 and 2 incomplete evidence is also not helpful to the case of the prosecution. So PW.3 to 6 evidence has many contradictions omissions and improvements. The prosecution has failed to prove contents of Ex.P.1 so its creates serious doubt regarding the version of prosecution. Therefore, this court clearly held that prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I answer Point No.1 in the negative.
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14. Point No.2 : For the aforesaid reasons, I proceed to pass the following:
ORDER Acting under Section 248(1) of Cr.P.C., accused is hereby acquitted of the offences punishable u/Sec. 51(B), 63 of Copyright Act and Sec.420 of IPC.
The bail bond and surety bond executed by accused shall continue for a period of two months from the date of this order and thereafter same shall stands cancelled automatically.
The seized properties in PF No.3/2019 item No.1 to 3 shall be destroyed as worthless after the appeal period is over.
(Dictated to the stenographer directly on computer, corrected directly on computer and then pronounced by me in open court on this the 12 th day of January 2024).
(R.Mahesha) IX Addl.Chief Metropolitan Magistrate, Bengaluru.
18ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
PW.1 : Stephan Raj PW.2 : Satish Kumar PW.3 : Santosh PW.4 : Mallikarjuna PW.5 : Somashekhar PW.6 : Mohammad Muktar Ahammad PW.7 : Kumar M LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION: Ex.P.1 : Complaint Ex.P.2 : Panchanama Ex.P.3 : Documents Ex.P.4 : Statement of PW.6 Ex.P.5 : Report Ex.P.6 : Notice.
List of material objects marked on behalf of the prosecution:
MO.1 to 4 : Cash & spare parts.
List of witnesses examined on behalf of the defence:
NIL 19 List of documents marked on behalf of the defence:
NIL List of materials marked on behalf of the defence:
NIL.
IX ADDL.C.M.M. Bengaluru.20
Judgment pronounced in the open court (Vide separate order) ORDER Acting under Section 248(1) of Cr.P.C., accused is hereby acquitted of the offences punishable u/Sec. 51(B), 63 of Copyright Act and Sec.420 of IPC.
The bail bond and surety bond executed by accused shall continue for a period of two months from the date of this order and thereafter same shall stands cancelled automatically. The seized properties in PF No.3/2019 item No.1 to 3 shall be destroyed as worthless after the appeal period is over.
IX ADDL.C.M.M. Bengaluru.